scholarly journals Scandalum Acceptum and Scandalum Datum: Kant's Non-Interventionism In The Fifth Preliminary Article of the Perpetual Peace

2016 ◽  
Author(s):  
Maria Chiara Pievatolo
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Moral Theology ◽  
The Other ◽  
Legal Power ◽  
Perpetual Peace ◽  
Other Hand ◽  
The Government ◽  
The Right

Is it right to wage war to export democracy, or -- as Kant would have said -- to interfere forcibly in the constitution and in the government of another state with the goal of transforming it into a republic? The answer of Kant is contained in the fifth preliminary article of the Perpetual Peace and it leans towards non-interventionism: a bad constitution can never justify a war, because it may be the root only of a scandalum acceptum. To understand the meaning of scandalum acceptum we have to become aware that it is a term originating from moral theology, which we should translate into the language of international law. Most of Kant's contemporaries still understood the scandal as the sin of advertising a sinful behavior. A scandalum is only acceptum, however, if the act that inspired others to sin has been done without the intention to give them a bad example. A flawed constitution can only be the occasion of a scandalum acceptum because its legal power does not spread its influence beyond the border of its state. If a nation chooses to imitate the allegedly wrong constitution of another state, its choice only depends on its sovereignty, because it is a matter of internal constitutional law. On the other hand, waging war against another country because of its allegedly flawed constitution is a worse kind of scandal, the scandalum datum, because it involves an international law principle of limited sovereignty according to which every state has the right to assault another state because of its constitution.

Equal to the Constitution: the Sources of Law of Highest Legal Force in the Russian Federation

2016 ◽  
Vol 4 (8) ◽  
pp. 0-0
Author(s):  
Михаил Пресняков ◽  
Mikhail Pryesnyakov
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Constitutional Law ◽  
The Other ◽  
Constitutional Court ◽  
Legal Norms ◽  
Other Hand ◽  
The Russian Federation ◽  
Juridical Acts ◽  
The Right

In article the question of validity of the Constitution of the Russian Federation and some other sources of the right which can also possess the highest validity is considered. In particular the author comes to a conclusion that legal positions of the Constitutional Court of the Russian Federation possess the highest validity and in total with the constitutional provisions represent the actual Constitution. On the other hand, both laws on amendments to the Constitution, and the universally recognized norms of international law on the validity stand below constitutional precepts of law. Acts of the Constitutional Assembly of the Russian Federation may in future be qualified as having the highest judicial effect. Such acts may abolish or change any provision of the present Constitution. At the same time the universally recognized norms of international law and the laws of the Russian Federation regulating amendments to the Constitution of the Russian Federation as independent juridical acts and sources of constitutional law are inferior as compared with the constitutional legal norms.

Party and the Augustan Constitution, 1694-1716: Politics and the Power of the Executive

1978 ◽  
Vol 10 (3) ◽  
pp. 193-208
Author(s):  
Dennis A. Rubini
Keyword(s):  
The Other ◽  
Glorious Revolution ◽  
Other Hand ◽  
The Commons ◽  
The Government ◽  
Charles Ii ◽  
The Right ◽  
The Glorious Revolution

William of Orange tried to be as absolute as possible. Inroads upon the power of the executive were fiercely resisted: indeed, William succeeded in keeping even the judiciary in a precarious state of independence. To maintain the prerogative and gain the needed supplies from parliament, he relied upon a mixed whig-tory ministry to direct court efforts. Following the Glorious Revolution, the whigs had divided into two principle groups. One faction led by Robert Harley and Paul Foley became the standard-bearers of the broadly based Country party, maintained the “old whig” traditions, did not seek office during William's reign, tried to hold the line on supply, and led the drive to limit the prerogative. The “junto,” “court,” or “new” whigs, on the other hand, were led by ministers who, while in opposition during the Exclusion crisis, held court office, aggressively sought greater offices, and wished to replace monarchy with oligarchy. They soon joined tory courtiers in opposing many of the Country party attempts to place additional restrictions upon the executive. To defend the prerogative and gain passage for bills of supply, William also developed techniques employed by Charles II. By expanding the concept and power of the Court party, he sought to bring together the executive and legislative branches of government through a large cadre of crown office-holders (placemen) who sat, voted, and directed the votes of others on behalf of the government when matters of importance arose in the Commons. So too, William claimed the right to dissolve parliament and call new elections not on a fixed date, as was to become the American practice, but at the time deemed most propitious over first a three-year and then (after 1716) a seven year period.

Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?

Grotiana ◽  
2021 ◽  
Vol 42 (2) ◽  
pp. 335-353
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
The Other ◽  
High Threshold ◽  
Other Hand ◽  
State Practice ◽  
The One ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms ◽  
Law Making

Abstract The concept of a Grotian moment remains rather obscure in international law. On the one hand, it can refer simply to an empirical fact which galvanises the ordinary law-making processes, whether treaty-making or State practice, resulting in major shifts in international law. On the other hand, a Grotian moment might be seen as an event so significant that it results in an extraordinary shift in international law without full adherence to the processes for law-making. The former understanding has little legal significance, while the latter, which would be legally significant, would be controversial and without legal basis. Against this background the article discusses the intersections between peremptory norms and Grotian Moments. It does this by looking at the intersection between the two concepts as well as the intersection between Grotian Moments, on the one hand and, on the other hand, particular jus cogens norms. With respect to the former, for example, the article will consider whether the high threshold of peremptory status facilitates and hinders Grotian moments. With respect to the latter, the article will consider particular norms that have been said to have shifted on account of the Grotian moments, namely the right to use of force in self-defence as well humanitarian intervention.

Współczesny kryzys migracyjny a uwarunkowania międzynarodowoprawne

2016 ◽  
pp. 67-98
Author(s):  
Przemysław Saganek
Keyword(s):  
International Law ◽  
The Other ◽  
Law Of The Sea ◽  
International Protection ◽  
Other Hand ◽  
The Law ◽  
Migration Crisis ◽  
Definition Of ◽  
The Right ◽  
The Eu

The text of Przemysław Saganek is a part of a wider discussion on the Mediterranean migration crisis. The author underlines the multi-aspect character of the crisis and the fact that several branches of international law which are at stake in it. They cover: the law on refugees, human rights, the law of the sea, the maritime law, the rules on territorial sovereignty and on the crossing of borders. What is of importance are customary norms, treaties and norms of the EU law. The idea of the author is to look at the instruments of international law which may act as incentive for hundreds of thousands of newcomers or as main obstacles for the states to put an end to uncontrolled inflow of people through their borders. His idea is to identify such instruments and start discussion on their possible suspension or termination if the crisis persists. The author comes to the conclusion that the definition of a refugee from the 1951 Geneva Conventionis not by itself a source of problems. The same concerns the subsidiary protection as introduced by the EU qualification directive. The same can be said about the scope of rights of persons covered by the international protection. The only element which requires discussion is the possible redefinition of the right to national treatment as regards the social aid. On the other hand, the scope of powers of states to defend their borders depends on the interpretation of the EU instruments on the protection of borders and the rights of applicants for international protection. The author comes to the conclusion that neither the procedural directive, nor the 2016 Schengen Border Code can be interpreted as a source of the right of an applicant to enter the territory of a Member State. On the other hand, the geographical conditions and the law of the sea make Greece and Italy the most vulnerable for the inflow of persons. The necessity of important changes to the law and its interpretation are referred to in a general way.

The Second Session of the Seventy-Seventh Congress

1943 ◽  
Vol 37 (2) ◽  
pp. 290-305
Author(s):  
Floyd M. Riddick
Keyword(s):  
United States ◽  
The United States ◽  
The State ◽  
The Other ◽  
State Of The Union ◽  
Other Hand ◽  
Tax Laws ◽  
The Government ◽  
The Right ◽  
Poll Tax

The course of affairs in the second session of the Seventy-seventh Congress can best be differentiated from that of all recent years if examined with the thought that the United States is in an “all-out” war. That was how the President presented the situation to Congress on January 6 in his annual message on the state of the Union. And that was the phrase frequently used throughout the year by Representatives and Senators as an argument for or against enacting controversial bills, delegating unprecedented regulative powers, or appropriating many billions of dollars to defray governmental expenses.On the other hand, while all of the recommendations for legislation embodied in the President's message were designed to bring the war more quickly to a close, Congress was asked by the Administration at various times during the year for the enactment of measures not related to the defense program, as the proposals to “rid Congress of trivia” and for settlement of claims of American nationals against the government of Mexico. The House and Senate, likewise, of their own accord, troubled themselves with such matters as the repeal of poll tax laws, the right of Senator Langer to his seat in the Senate, and the so-called “Congressional pension bill.”

scholarly journals Religious Freedom in Indonesia: An Islamic Human Right Perspective

2018 ◽  
Vol 18 (1) ◽  
pp. 71
Author(s):  
Linda Evirianti
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
The State ◽  
Human Existence ◽  
The Other ◽  
Human Right ◽  
Other Hand ◽  
Constitutional State ◽  
The Government ◽  
The Right

Everyone has the right of religious freedom or belief which becomes one of important parts of Human Rights (HAM/Hak Asasi Manusia). Thus, no one can be subjected to coercion that can interfere his freedom to adopt or embrace a religion or belief of his choice. The main characteristic of modern constitutional state is the guarantee of human rights in its constitution. In the Constitution NKRI 1945 has set human rights and the rights of citizens in the form of guarantees freedom for each citizen to embrace religion and worship according to their religion or belief. A state guarantees the freedom of each citizen to adopt a religion or belief, but the state (the government) must regulate the freedom in implementing and practicing a religion or belief so that the government can respect, protect, enforce and promote Human Right (HAM) and conserving security, order, health or public morals. Speaking of human rights in Islam is not an historical product arising from human ideology, a concept that has a theological dimension and will be accountable to God. Freedom of thought, conscience, religion and belief is part of the most important human rights, even have status as a right that should not be reduced and violated under any circumstances. On the other hand, religious freedom protects the phenomenon that can be controversial and dangerous for human existence, because religion and systems of ideological belief can be misused to trigger intolerance, discrimination, prejudice, hatred, and violence.[Setiap orang berhak atas kebebasan beragama atau kepercayaan yang menjadi salah satu bagian penting Hak Asasi Manusia. Dengan demikian, tidak ada yang bisa terkena paksaan yang bisa mengganggu kebebasannya untuk mengadopsi atau menganut agama atau kepercayaan pilihannya. Karakteristik utama negara konstitusional modern adalah jaminan hak asasi manusia dalam konstitusinya. Dalam Konstitusi NKRI 1945 telah menetapkan hak asasi manusia dan hak warga negara dalam bentuk jaminan kebebasan bagi setiap warga negara untuk merangkul agama dan ibadah sesuai agama atau kepercayaan mereka. Sebuah negara menjamin kebebasan setiap warga negara untuk mengadopsi agama atau kepercayaan, namun negara (pemerintah) harus mengatur kebebasan dalam melaksanakan dan mempraktikkan agama atau kepercayaan sehingga pemerintah dapat menghormati, melindungi, menerapkan dan mempromosikan Hak Asasi Manusia (HAM). Dan melestarikan keamanan, ketertiban, kesehatan atau moral publik. Berbicara tentang hak asasi manusia dalam Islam bukanlah produk historis yang muncul dari ideologi manusia, sebuah konsep yang memiliki dimensi teologis dan akan bertanggung jawab kepada Tuhan. Kebebasan berpikir, hati nurani, agama dan kepercayaan adalah bagian dari hak asasi manusia yang paling penting, bahkan memiliki status sebagai hak yang tidak boleh dikurangi dan dilanggar dalam kondisi apapun. Di sisi lain, kebebasan beragama melindungi fenomena yang bisa kontroversial dan berbahaya bagi eksistensi manusia, karena agama dan sistem kepercayaan ideologis dapat disalahgunakan untuk memicu intoleransi, diskriminasi, prasangka, kebencian, dan kekerasan.]

scholarly journals CASE STUDY ON VIOLENCE AGAINST AHMADIYYA ADHERENTS IN INDONESIA IN THE REIGN OF PRESIDENT SUSILO BAMBANG YUDHOYONO

2017 ◽  
Vol 2 (2) ◽  
pp. 38
Author(s):  
Agung Yudhistira Nugroho
Keyword(s):  
Human Rights ◽  
Universal Declaration ◽  
The Other ◽  
Easy Task ◽  
Religious People ◽  
Other Hand ◽  
Unity In Diversity ◽  
The Government ◽  
The Right

<p>Ahmadiyya saga in Indonesia just like a never ending stories. Starting from the non-acceptance of them in society, violence and intimidation, pressure from Islamic organizations and the Indonesian Ulema Council. The government placed in the position of a dilemma. On one hand the government is required to protect its citizens in this regard Ahmadiyya followers are intimidated by a group or community that does not accept them, on the other hand the government must determine the manner in which the Government should disband and ban the Ahmadiyya. When the Ahmadiyya and other religious people defended using the excuse of the Universal Declaration of Human Rights, the UN Human Rights artificial precisely considered weak and unable to protect Palestinians from Israeli attacks.  From here then comes the problem of where the followers of the Ahmadiyya to be able to put themselves in a society that does not accept them, Not an easy task to find the right solution for this case. Solutions that can be offered is to address these differences by looking at the cornerstone of our country Pancasila which has a single slogan Unity in Diversity. In that case author also concern about how the the government in maintaining security for Ahmadiyya followers whom a citizen of Indonesia as well? This is what will be studied in this paper.</p><p> </p>

Analysis of the Recipients of Zakat and the Current Situation

2020 ◽  
pp. 331-338
Author(s):  
Muhammad Suleman Nasir ◽  
Fida Ur Rahman
Keyword(s):  
Economic System ◽  
Current Situation ◽  
The Other ◽  
Human Beings ◽  
Way Of Life ◽  
Other Hand ◽  
The Government ◽  
Islamic Economic ◽  
The One ◽  
The Right

The second most important pillar of Islam after prayers is Zakat. In the Qur'an, the command of obligatory prayers and zakat has been mentioned together in (82) places. Zakat is the backbone of the Islamic economic system. The philosophy behind the ruling on the payment of Zakat is that the Islamic government should provide the whole society with such an economic system, way of life and social structure in which the needs of the needy people of the society can be met. Islam has made it the duty of every rich Muslim to withdraw one and a half per cent of his accumulated wealth on an annual basis and deposit it collectively in the government treasury. Government has to spend the money of Zakat on meeting the needs of the poor, needy and impoverished people of the society. This is only the right of those deserving whose details have been explicitly stated in the books of Qur'an, Hadith and Fiqh. Zakat is the right of human beings, on the one hand, and on the other hand, it is also the right of Allah. Due to its non-payment, on the one hand, the right of human beings is denied and on the other hand, the right of Allah Almighty is denied. Therefore, it is very important to deliver the amount of Zakat to its rightful owners. The Qur'an mentions eight uses of zakat. It is an important issue in the present times to bring Zakat to its actual recipients. This article examines the recipients of Zakat and the current situation and how these recipients can be made appropriate in a proper manner.  

scholarly journals Larangan Aktivitas Jemaat Ahmadiyah Indonesia (JAI) di Jawa Timur dalam Perspektif External Protection dan Internal Restriction Will Kymlicka

2016 ◽  
Vol 6 (1) ◽  
Author(s):  
Aimmatul Alawiyah
Keyword(s):  
Religious Belief ◽  
Basic Assumption ◽  
Minority Group ◽  
The Other ◽  
Individual Rights ◽  
Will Kymlicka ◽  
Other Hand ◽  
The Government ◽  
The Right ◽  
Executive Body

In order to protect Ahmadiyah in East Java, the executive body of East Java Province has issued a Degree No. 188/94/KPTS/013/2011 regarding the prohibition of the Ahmadi’s activity in east java. However, it becomes controversial. On one hand, it is considered protecting minority’s right, but on the other hand, it also weakens the position of Ahmadiyah toward majority’s group outside Ahmadiyah. One implication of the degree is the loss of the primer rights of the group in worshiping their belief in accordance with their faith. Combining Kymlicka’s external protection and internal restriction, this article attempts to analyze the implication from the government degree. The basic assumption of this article is that the country is incapable to protect the existence of minority group, Ahmadiyah. The finding shows that the Government of East Java cannot protect the principle rights of Ahmadiyah, especially the right to worship based on their religious belief. As a response to this restriction, Ahmadiyah has applied an internal restriction towards their members that protect themselves from the majority. However, this restriction does not have a penalty so it is considered protecting individual rights of Ahmadiyah group.

The Scope and Content of Section 75(1)(a) of the Zimbabwean Constitution: An International Law Approach

2020 ◽  
Vol 53 (2) ◽  
Author(s):  
Chiedza Simbo
Keyword(s):  
International Law ◽  
Education System ◽  
Basic Education ◽  
The State ◽  
Education Act ◽  
The Government ◽  
The Right ◽  
Basic Education System

Despite the recent enactment of the Zimbabwean Constitution which provides for the right to basic education, complaints, reminiscent of a failed basic education system, have marred the education system in Zimbabwe. Notwithstanding glaring violations of the right to basic education by the government, no person has taken the government to court for failure to comply with its section 75(1)(a) constitutional obligations, and neither has the government conceded any failures or wrongdoings. Two ultimate questions arise: Does the state know what compliance with section 75(1)(a) entails? And do the citizens know the scope and content of their rights as provided for by section 75(1)(a) of the Constitution of Zimbabwe? Whilst it is progressive that the Education Act of Zimbabwe as amended in 2020 has addressed some aspects relating to section 75(1)(a) of the Constitution, it has still not provided an international law compliant scope and content of the right to basic education neither have any clarifications been provided by the courts. Using an international law approach, this article suggests what the scope and content of section 75(1)(a) might be.

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